A Case for United States v. Connolly: The Forgotten Posterchild of Protecting Corporate Employees’ Rights During Internal Investigations and Why It Should Be the Standard, Not the Exception

Authors

• William Marment

First Page

513

Abstract

In May 2019, United States v. Connolly provided a benchmark for government involvement in corporate internal investigations. The decision curtailed the close, and oftentimes coercive nature of the relationship between the prosecutor and corporate counsel conducting internal investigations on a corporation’s behalf. It drew a line between the government improperly outsourcing its investigation to the target corporation and when an employee’s statements are not fairly attributable to government prosecutors, and thus not compelled. The Connolly Court ruled that statements from counsel-led employee interviews, conducted under the threat of termination, were fairly attributable to the government and thus improperly compelled. Those involuntary statements breached the former-employee defendant’s Fifth Amendment rights, and were therefore inadmissible against him at trial. The Connolly decision instills important Brady discovery rights for defendants battling against a dual adversary of government prosecutor and external corporate counsel looking for scapegoats. However, Connolly has been limited to its specific facts and overlooked by many courts when deciding the efficacy of internal corporate investigations. This Note suggests that that judicial action is ill-suited to ensuring the Fifth Amendment rights of executives fighting the coercive hand of their corporate employer. Connolly should be extended and read more broadly to apply more frequently in the context of corporate internal investigations. By protecting an employee’s right against self-incrimination, Connolly ensures the prosecutorial agency will conduct a fulsome parallel investigation that does not solely seek to place blame on a handful of “rogue” agents.

Recommended Citation

William Marment, A Case for United States v. Connolly: The Forgotten Posterchild of Protecting Corporate Employees’ Rights During Internal Investigations and Why It Should Be the Standard, Not the Exception, 20 Brook. J. Corp. Fin. & Com. L. 513 (2026).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol20/iss2/9